


The "Exclusionary Rule" And Violence Against Telepaths (Part 2)

by pallasite



Series: Behind the Gloves [162]
Category: Babylon 5, Babylon 5 & Related Fandoms
Genre: Backstory, Bigotry & Prejudice, Canon Compliant, Constitutional law, Criminal Law, Discrimination, Essays, Fix-It, Gen, How Normals Get Away With Assault, How Normals Get Away With Murder, How canon misled you, Law, People are not devices, Psi Corps, Rules of Evidence, Telepath Law (Babylon 5), The Earth Alliance Justice System Is Broken, Worldbuilding, double standards, telepaths
Language: English
Status: Completed
Published: 2020-03-07
Updated: 2020-03-07
Packaged: 2021-03-01 02:08:15
Rating: Teen And Up Audiences
Warnings: No Archive Warnings Apply
Chapters: 1
Words: 2,532
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/23047528
Author URL: https://archiveofourown.org/users/pallasite/pseuds/pallasite
Summary: The rule excluding scans from evidence in criminal cases appears on its face to be about maintaining "fairness" (and who could be against "fairness?"), but under the surface lurks a darker reality: that this exclusion (perhaps intentionally) shields normals from the legal consequences of assaulting, abusing and murdering telepaths.Part 1explains what the "exclusionary rule" means in law (including the doctrine of the "fruit of the poisonous tree"), using canon cases for illustration. This essay discusses the in-universe history of the rule. Subsequent essays will discuss its out-of-universe origins and illustrate its impact on the telepath community with more canon examples.The prologue ofBehind the Glovesishere- please read!
Series: Behind the Gloves [162]
Series URL: https://archiveofourown.org/series/677654
Comments: 2
Kudos: 4





	The "Exclusionary Rule" And Violence Against Telepaths (Part 2)

**Author's Note:**

> New to _Behind the Gloves_? What is this series? Where are the acknowledgements, table of contents and universe timelines? See [here](https://archiveofourown.org/works/10184558/chapters/22620590).
> 
> If you like _Behind the Gloves_ and would like to send me an email, I can be reached at counterintuitive at protonmail dot com. Do you have questions? Would you like to tell me what you like about this project? Email me!
> 
> I also have an [ask blog](https://behind-the-gloves.tumblr.com/), a [writing blog](https://www.tumblr.com/blog/pallasite-writes), and a "P3 life" Tumblr [here](https://www.tumblr.com/blog/p3-life) with funny anecdotes. :)

Long ago, a friend one mine referred to Babylon 5 canon as a "crumbly cookie."

"It's like if you have a really old cookie," she said, "and you forget about it and leave it there for years. And then maybe one day you find it, and you've forgotten it's really old. The moment you touch it, it falls apart. It looks so yummy, but then you pick it up, and NOPE."

The following section is a perfect example of canon being a "crumbly cookie" (though to be fair, this never looked "yummy") - the more I tried to explain this and put it together in a coherent way, the less sense it made. I rewrote the essay, but then it fell apart in a new way. Finally the whole thing fell apart completely and I ended up right back where I started, namely:

**The canon background to the telepathic "exclusionary rule" is a mess, because it's just a case of "reverse writing", whereby Keyes threw together something that doesn't make legal or historical sense to justify what JMS had already set out in the show.**

The "exclusionary rule" certainly comes up _often_ \- from what I've counted, it's mentioned in some form in seven episodes, with eleven additional references in the _Psi Corps Trilogy_ and another I found in one of the semi-canon comics. There may be other canon or semi-canon materials that also reference it. It's supposed to be really important, but does it make sense? Is there a coherent principle in here?

Unfortunately, no. Irrational prejudice is irrational. It always justifies itself, no matter what the facts are, or even if it contradicts itself.

/sigh/

Here's a contradiction: business telepaths exist. In some sense, they are even an "institution" in Earth Alliance commerce. A large percentage of telepaths in the Corps work as commercial telepaths. Every medium or large business in the whole Earth Alliance hires in-house commercial telepaths. And smaller companies hire freelance commercial telepaths.

Business telepaths are trusted. If they say nothing, normals assume the parties to the deal are being honest and forthcoming. If a party is lying or withholding critical information, normals expect telepaths will speak up, and that they will tell the truth.

All of Earth Alliance commerce rests on these assumptions.

So how then can you say that these same people, by virtue of being telepaths, these special people who are uniquely qualified to monitor honesty in business, are also, by virtue of being telepaths, disqualified from testifying in courts on matters of truth or dishonesty? How are these same people trusted intimately in business at the highest levels of commerce, but banned from testifying in court because, in JMS' own words in a Usenet post, to allow scans into evidence would be "one step removed from tyranny" of telepaths over normals?

I come back to that Usenet post in the next essay. Bear with me for the moment. There are two pieces to this: 1) how this contradiction is resolved in-universe, and 2) what it means that JMS expressed this belief _as the author_.

This essay only addresses the first part. We'll get to the second part when I return to that interview later.

In-universe, in my opinion, this contradiction only makes sense 1) if the rule excluding telepaths began first with the _political_ decision to keep the testimony of telepaths out of the courts, as part of the larger scheme to strip telepaths of social and political rights and to codify the dominance of normals, while 2) the role of telepaths in commerce developed independently, driven not be ideology but by profit.

It's not _rational_ that normals would one one hand trust the whole Earth Alliance economy to the word of telepaths (that's not an "evil plot"), yet feel strongly on the other that to let telepaths in a courtroom to testify would pave the road to "tyranny" of telepaths over normals.

The explanation is actually, sadly, fairly simple:

  * Normals tolerate telepaths as "devices" in the business world, because that makes them money, but they won't tolerate a telepath's word having any influence on whether a normal loses rights (e.g. goes to jail). Telepaths can serve normals, and in that role they're tolerated, but telepaths can never be given any power over normals, e.g. to influence a normal's fate. That would be an inversion of the "natural order" of things.
  * Everything else is a rationalization.



With this is mind, here is what _Dark Genesis_ offers us about the history. The scene below takes place in 2134, on Kevin Vacit's first day as Crawford's aide in the Metasensory Regulatory Authority (the predecessor to the Corps). We see two key things here:

  * As of 2134, there were lawmakers who wanted to expand telepath rights in the court system (parallel to the business world), but Crawford stopped it with Vacit's help. Telepaths were not denied these rights "because the government didn't trust the Corps," they were denied these rights _long before the Corps existed_ , even right from the outset of the MRA.
  * It is also possible that of 2134, normals didn't have the absolute right not to be scanned, something I already wrote up in my essay [here](https://archiveofourown.org/works/14681790) (about how the right not to be scanned was created later, and then came to apply only to normals). This all depends on the meaning of the vague sentence, "telepath testimony is good for establishing the possibility of guilt, but should not be admitted without [corroborating evidence]." Does he mean that in 2134, unlike later on, police could get a warrant to scan a suspect? Does he mean only that a victim or witness can agree to a scan (as we see later), but that this can't come in without corroborating evidence (as we also see later)?



And even if Keyes just meant what we see later, is that even accurate for this time period, in any meta sense? Is this sloppy writing, or actually true for that time period? Were the laws really established "all at once," in unchanging fashion, or in stages, as laws usually change and evolve? How are we supposed to believe that the laws were born fully formed like Athena from Zeus, and then remained unchanged for 150 years?

Here, have a crumbly cookie.

Either way, by 2148, as we see in a later canon scene (part of the Raskov story), this is no longer the case. Normals cannot be compelled to be scanned with probable cause, "for establishing guilt," even if that means normals get away with murder (and they do).

\-----

 _Dark Genesis_ , p. 79-80

[2134, Geneva. Kevin Vacit meets Lee Crawford for the first time, in Crawford's office.]

"So, Kevin. Bachelor of science in neurophysics from ASU, master's in the same from Harvard - and a degree in law. First in your class. Worked with the Houston special attorney for metasensory evidence - ah, Ernesto Perez, a good man." He looked up. "Son, how old are you?"

"I'll be twenty-four next month."

Lee smiled. "You'll stop countin' that way someday, son, I promise you. But damn impressive, to be where you are at your age. Precocious, even." He stood up. "Drink?"

"No, thank you."

Lee snorted. "Figures Tom would replace himself with another straight arrow." He went to a small cabinet and withdrew an earthenware bottle, poured an amber fluid into a small crystal flute.

"So you oversaw telepaths in the courtroom."

"I did."

"Well, tell me this. Some of my colleagues have been pushing to broaden the admissibility of teep testimony. What's your opinion?"

"My opinion is that things are best as they stand."

Lee nodded. "Well, at least you have an opinion. Now explain it."

"Spectral evidence."

"I'm afraid you've lost me, son."

"In the late seventeenth century, in North America, in Salem, Massachusetts, a number of people were tried and many hung for witchcraft. The court admitted testimony of spectral evidence - allegations that the accused had appeared in ghostly form to those they afflicted. One of the men involved - Cotton Mather - argued persuasively against the admissibility of such evidence. After all, the testimony wasn't verifiable - the witnesses could lie for any number of reasons, accusing innocent people. Despite Mather's objections, the testimony was admitted, and twenty-one people were executed. Later, there was a backlash, a big one. I think telepath testimony is comparable. It's good for establishing the possibility of guilt, but shouldn't be admitted without corroborating physical or overwhelming circumstantial evidence."

Lee cocked his head. "They teach you that in law school?"

"No. I'm something of a history buff."

"Write that up for me. It'll sound good on the floor. Can you think of other historical precedents?"

"Yes. In Nigeria, in 2002-"

"Just write it up."

\-----

Kevin's argument seems to be, "since ghosts can't testify, and witnesses can't testify about what ghosts told them, then telepaths shouldn't be able to testify either, because NORMALS WILL DIE EN MASSE."

This, as I said, is odd, since the entire model of business telepaths depends on trusting the "unverifiable" word (or silence) of telepaths. The business world doesn't fall apart with telepath participation, so why should telepath testimony in court be any more or less credible? Just because a telepath says something doesn't mean the jury has to believe it (like with any other witness).

But the cookie is even crumblier! He's also wrong that [spirit testimony is inadmissible in criminal trials](https://www.huffpost.com/entry/how-a-ghosts-evidence-con_b_9252062?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAG3BtIY5PGQl5bkQSdpgaeRfb4Vnf5ohf8rSbtFUv7L03_DJ9bstbZMwczhCRPtdiRseEsLNcShL3PTWifC5p1BZnRIUvQmwQ3scFEnL8zi6vxt1MZojI5h4S_It3WvSbUF4agGuAZZJe7qt0sBt4A7Nnc7sTFy7B8LyFHxg5mfG).

There is no such rule! He implies that this has been some principle of American law since the Salem Witch Trials, but there's no such rule. He just made this up! That's why he "never learned about this in law school." (And neither did I!) He's bullshitting to come up with a justification for a _political outcome_.

In the article I linked, from a real 1897 case, the story about of the ghost, along with other evidence, prompted the prosecutor to reopen the case, and the story of the ghost, along with other evidence, led to a conviction from the jury. The jury was free to credit the ghost story or not in determining, with the weight of other evidence, the matter of guilt or innocence.

We don't see this happen in court cases because _we, culturally, don't tend to believe such things to be true or reliable_ , not because there's some legal rule that someone can't testify about a spirit vision.

In a culture that obviously _totally_ believes telepaths are real, banning the people most able to determine truth vs. lies from testifying in court doesn't _logically_ make any sense. And that's because it's not "logic" that's behind any of this, but _fear_ , and _social dominance_. Telepaths constitute a [lower "caste"](https://archiveofourown.org/works/17318228) \- and you _cannot ever_ allow a low-caste person to convict a high-caste person of a crime. What caste-based society would ever allow the oppressed to testify against their oppressors? Allow the "untouchable" race to testify against the superior race? That would be CHAOS! That would be TYRANNY!

Get it?

The whole "ghost testimony" thing is _especially bizarre_ given that later on, Bey impresses upon Bester for a whole chapter the importance of the movie _Rashomon_ , and in that movie, the deceased samurai testifies at the trial, through a medium. There's only one movie mentioned in this whole book, _and it's in part about a ghost testifying at trial_. And on top of that, the ghost is even lying! _  
_

So where do we end up? 1) There's no actual rule barring spirit testimony in courts (it's all cultural); and 2. we have a lengthy discussion of a Japanese movie wherein a ghost testifies (without objection).

As I said above, in _Dark Genesis_ , **Keyes threw together something that doesn't make legal or historical sense to justify what JMS had already set out in the show.**

And JMS tried to come up with some "legal principle" to support what was - his own views aside - a _political_ decision to create a caste system, and to justify it and codify its existence into law.

(I'd "like to believe" that Bey was so clever, that in showing Bester the movie, he was trying to subvert the mundane-written Corps curriculum and get Bester to question the "rules" about telepath testimony in court - for some unknown reason - but I can't give these writers so much credit. This cookie is too crumbly, and there's no evidence of that in those scenes. And even if it had been part of Bey's intention, it is 100% lost on Bester not just then, but ever. He knows the EA "justice system" is broken as hell, but he doesn't connect it to that movie in particular. It looks like a **Maximum Irony Writing Error** to me - and one hell of a coincidence, because ghosts testifying in court is such a common theme? (lolwut))

Anyway, once the rule is established that normals cannot be scanned pursuant to a warrant, it directly leads to normals getting away with murder. We see this in [the Raskov story](https://archiveofourown.org/works/17308712) (IPX kills a business telepath).

\-----

 _Dark Genesis_ , p. 108-109

[Kevin Vacit and Ninon Davion are in San Diego, investigating the matter of the artifacts and Raskov's mysterious death. Vacit has not told her yet that he is a telepath, and he is asking about her impressions.]

"Two things. First - do not bother to read the transcript of the transaction Raskov monitored - it is a fake."

"Really."

"Really. The second thing is this what's-his-name - Hammerstein - wasn't really assigned to the Sandakan office. She doesn't know what happened to him, and she's more than a little worried about herself."

"About her job?"

"Her life, I think."

He picked at his food, avoiding Davion's challenging eyes. "So we have a teep who monitors a business deal. It was a secret transaction, probably illegal, and they killed him."

"I think so. But we cannot prove any of it. We cannot prove the transaction is a fake. We likely will be unable to find either of the principals to subpoena, but if we do they will simply quote the forged transcript. A simple scan will show they are lying, but of course such information is not admissible in court."

"Spectral evidence," he murmured.

"Say again, please?"

"Nothing."

\-----

Then Kevin lets Stoddard and the others get away with Raskov's murder, using these circumstances as a way to threaten Stoddard (through bluffs and blackmail) into turning over the artifacts to the MRA (which later becomes the Corps). And he realizes that the rules that impede any actual prosecution of Stoddard originated, at least in part, with himself.

As I said in that earlier post, "[Vacit] shows himself to be a ruthless son of a bitch who doesn't care if individual telepaths live or die - or even that he's helped set up laws that allow normals to murder them and get away with it - so long as it helps him personally attain more power, though no doubt in his mind this is less about him personally than some "vision for his role in the path of the human race" or whatever that he's got going on, the same thinking that led him to the Vorlon on Venus, but also the same thinking that led him to set up the child abuse of Cadre Prime."


End file.
